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Judicial Qualities: Illustrations from Past Lives

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Judicial Qualities: Illustrations from Past Lives 18 Judicial Studies Institute Journal [2008:2 JUDICIAL QUALITIES: ILLUSTRATIONS FROM PAST LIVES EVAN BELL* INTRODUCTION Judicial obituaries are neither penetrating studies nor full length biographies. They are, at best, brief biographical sketches. Nevertheless an examination of them can cast light on the qualities which are desirable in the exercise of the judicial functions. Judicial obituaries provide not only summaries of the public facts of lives, but glimpses of the uniqueness of individuals, and appraisals of character in memorable lives. This article seeks to examine what qualities have been admired in judges by distilling such traits from obituaries published in national newspapers in recent years. In the public mind judges inevitably tend to be defined by their more controversial decisions, and hence obituaries may focus on notorious cases rather than notable qualities. Nevertheless, a particular case may demonstrate the significant qualities possessed by an individual, and have come to define the individual’s approach to their work. However, in the minds of legal practitioners, it is the qualities, personalities and working methods, rather than individual cases, that are significant. Some comments about the source material for this article are important. The tenor and focus of judicial obituaries may vary considerably between different newspapers.1 I have chosen to use obituaries from across a range of jurisdictions and for some obituary writers, particularly in the United States, judges may be judicial heroes because of their legal philosophy. However, for the purpose of this article, judicial philosophy is irrelevant; it is the generic judicial qualities which are at issue. Although few _____________________________________________________ * Master, Queen’s Bench and Matrimonial, Supreme Court of Judicature for Northern Ireland. 1 Compare for example “Sir William Mars-Jones: Obituary”, The Times, 11 January 1999 with “Against Secrets and Lies; Obituary: Sir William Mars- Jones”, The Guardian, 12 January 1999. 2008] Judicial Qualities: Illustrations from Past Lives 19 obituaries are entirely complimentary, they usually tend not to be highly critical. Judges are of course flawed human beings, and simply because a judge is noted as having been admired for one quality does not mean that all the individual’s qualities were admirable. He or she may have had significant flaws also. Obituaries are appraisals that represent “the first verdicts of history”.2 They are therefore unlikely to be completely thorough and objective, but will nevertheless attempt an assessment of a life. Obituaries are also prepared for an audience without specialist legal knowledge, but are expected to be of particular interest to those with such knowledge. Inevitably judges who preside in appeal courts or supreme courts attract more attention from obituary writers. Such limitations on the source material inevitably have an impact on the conclusions which may be drawn from it. I. INDEPENDENCE Judicial independence is the constitutional doctrine that judges are independent of the executive and the legislature, and that decisions by judges should be impartial and not be subject to influence from the other branches of government or from private or political interests. However, in addition to being a constitutional doctrine, judicial independence is fundamentally a state of mind. Lord Ackner was described as “a fiercely independent judge, never afraid to speak his mind”.3 Judge Ioannou of the European Court of Justice was admired for his “real independence and impartiality of mind”.4 Judicial independence is at its most visible in terms of independence from government, and particularly in instances where the State invokes national security considerations. Mr. Justice Mars-Jones’ handling of the 1978 trial of Crispin Aubrey and Duncan Campbell, both journalists, and John Berry, an ex-soldier, for offences contrary to the Official Secrets Act _____________________________________________________ 2 Starck, “Posthumous reflections: the obituary as the first verdict of history”, [2004] Journalism and History 1. 3 “Obituary of Lord Ackner, Law Lord whose ruling in the Spycatcher case strained relations with the press”, The Daily Telegraph, 23 March 2006. 4 “Obituary: Judge Krateros Ioannou”, The Independent, 2 April 1999. 20 Judicial Studies Institute Journal [2008:2 1911, has been viewed as demonstrating this quality. The prosecution resulted from a meeting of the three to discuss the subject of electronic surveillance and Berry’s service in a GCHQ signals regiment in Cyprus. The proceedings were perceived as being desired by the Security Service so as to jail Duncan Campbell, who kept breaching D-notices. Towards the end of the prosecution evidence, Mr. Justice Mars-Jones announced he was “extremely unhappy” about this “oppressive prosecution”, commenting that section 1 of the 1911 Act was designed for use against spies, and asking why was it being used against freedom of speech. The prosecutor responded that the proceedings had been authorised by the Attorney General. Mr. Justice Mars-Jones replied “[i]f the Attorney-General can authorise the prosecution, then he can unauthorise it”, and the following day the Attorney General did just that. The defendants were subsequently convicted by the jury of offences under section 2 of the 1911 Act, and many were surprised by the sentences imposed by the judge: Aubrey and Campbell were given conditional discharges, and Barry received a short suspended sentence. Mars-Jones’ conduct of the trial “has often been cited as an example of how judges can be trusted to protect fundamental liberties when press and Parliament fail to do so and as an important assertion of the judicial role as a check on state power”. Indeed, his handling of it was said to both “exemplify and justify the independence of the judiciary”.5 A notable US example of judicial independence was that of Judge John Sirica who, as Chief Judge of the Washington DC Federal Court, presided over the trial of the burglars who broke into the Democratic Party National Committee headquarters in the Watergate Hotel in Washington in 1972 on behalf of the Committee to Reelect the President.6 Sirica granted a subpoena duces tecum directing President Nixon to produce to the special prosecutor, for use in criminal proceedings, tape recordings of conversations in the White House between the President and his _____________________________________________________ 5 “Against Secrets and Lies; Obituary: Sir William Mars-Jones”, The Guardian, 12 January 1999 and “Obituary: Sir William Mars-Jones”, The Independent, 25 January 1999. A fuller account of the trial may be found in Robertson, The Justice Game (1999), ch. 5. 6 “Obituary: Judge John Sirica”, The Independent, 20 August 1992. 2008] Judicial Qualities: Illustrations from Past Lives 21 advisers. In directing the White House to produce the tapes, Sirica set himself on a constitutional collision course with the President, who tried to invoke executive privilege, arguing that the tapes were not subject to judicial scrutiny. In a historic ruling in United States v. Nixon,7 the US Supreme Court upheld Sirica and affirmed the subpoena. The President complied, and the tapes revealed that Nixon had approved plans for the Watergate cover- up six days after the break-in.8 Nixon promptly resigned from office. The Watergate case did substantial damage to the Republican Party, as the judge suspected it might. Despite Sirica’s deep ties to the Republican Party (he was an elected party official who campaigned for Republican candidates in five national campaigns9), he believed that an independent judiciary, standing above politics, was the critical branch of government in the resolution of the Watergate crisis. Judicial independence demonstrated by judges is sometimes, given the background of the judge, perceived by the legal profession as being “unexpected independence”.10 For example, it was said of Lord Ackner that, “in spite of his conservative outlook, he had no hesitation in reaching decisions unfavourable to a Conservative government”.11 However, perhaps the idea that independence is unexpected indicates more about the holder of the perception than the judge, since judicial independence merely reflects faithfulness to the judicial oath. Judicial independence also requires judges to be independent of other judges. This is particularly so when judges sit on multi-judge appeal panels. Lord Hobhouse was described as “the ideal of the independent judge” in that he thought for himself and, having once arrived at his point of view, was not easily swayed by the views of others. His fellow judges, first in the Court of Appeal and then in the House of Lords, particularly _____________________________________________________ 7 (1974 ) 418 U.S. 683. 8 “John Sirica, Watergate Judge, Dies”, The Washington Post, 15 August 1992. 9 “Sirica, 88, Dies; Persistent Judge In Fall of Nixon”, The New York Times, 15 August 1992. 10 “Obituary: Lord Keith of Kinkel: Law lord who helped overturn the Tory ban on Spycatcher”, The Guardian, 27 June 2002. 11 “Obituary of Lord Ackner, Law Lord whose ruling in the Spycatcher case strained relations with the press”, The Daily Telegraph, 23 March 2006. 22 Judicial Studies Institute Journal [2008:2 valued him as a colleague; his independent viewpoint was one against which they could measure their own. His independent cast of mind meant that he was never afraid to dissent, even when 12 doing so put him in a
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